Facebook Case Sets Up Google Latitude as Tempting Legal Tool

By Clint Boulton |
Posted 2009-11-14

Facebook Case Sets Up Google Latitude as Tempting Legal Tool

News Analysis: Defense attorneys everywhere are high-fiving in the
wake of a Brooklyn teenager's acquittal over robbery charges when it was learned the teen had
posted a status update on Facebook from his home computer during the crime.

And with that, proponents of Facebook, Twitter and other social networks are
reveling in that revelation: Social networking can set you free!

Not only does Facebook help users connect and share information with each
other, but it also frees them from jail. It's also put people there; see the case where a perpetrator used Facebook on the computer of a home
he burglarized and forgot to log out. Oops.

That got eWEEK thinking about a new feature Google just turned on for its
Google Latitude social networking service.

Google
Latitude uses cell phone tower triangulation to let users see where their Latitude friends are on Google Maps from
their mobile phones, or via an iGoogle gadget from their desktop. Users must
opt in to use the service and share their location. Users can control what
friends see where they are.

Latitude got a lot more interesting when Google Nov. 11 added a Location
History feature. As you might expect, Location History logs where Latitude
users have been at any point in time. Users must opt in to use this service,
and may delete some or all of their location history at any time.

Latitude Location History could be incredibly tempting and powerful for law
enforcement agencies to leverage to make their cases versus alleged
perpetrators. Similarly, litigators would find this location history useful.
Considering the recent Facebook robbery alibi, Latitude could be as liberating
as it is damaging.

The fact that Google is now storing location history has privacy advocates
such as the Electronic Frontier Foundation concerned. The EFF already has a
history with location-based services such as Loopt and Latitude; in March the
group cajoled Google into requiring law enforcement officials to produce a
legal warrant before sharing any Latitude data. All was right with the world.

The emergence of Latitude Location History has the EFF in a new snit. Kevin
Bankston, senior staff attorney for the EFF, who originally harangued Google over Latitude, was not happy about the feature,
noting that Location History for Latitude creates a whole new set of privacy
risks because that history may be vulnerable to demands by the government or
civil litigants.

EFF Concerned with Latitude Location History

When eWEEK pointed out how a status update from Facebook freed a teen from
wrongful imprisonment and that Google Latitude Location History could be used
for similar purposes, Bankston said the usefulness of the features are poor
trade-offs considering the risks to user privacy.

Bankston admitted he was pleased Google made Latitude's location history an
"opt-in" feature and that users can delete all or part of their
history at any time. He still prefers that Google stay out of the location
history business because the legal compliance issue could pose a problem for
Latitude users.

"What is Google's position if the government or a civil litigant comes
knocking? We think that under federal privacy law, the government would have to
get a warrant for stored locations less than 181 days old while civil litigants
would not be able to access them at all. But we don't have any public
indication from Google that it has taken that position."

Moreover, Bankston said that even if this is Google's position, strong
warrant protection disappears at 180 days, after which the government can use
only a subpoena to get this data. He would like Google to create a default
feature so that user locations are deleted after 180 days unless users
explicitly change their settings to some other expiration date.

eWEEK asked Google if it is making any changes to the way it will handle
Latitude Location History info if law enforcement folks come knocking.

A Google spokesperson told eWEEK: "Google complies with valid legal
process, such as court orders and subpoenas. ... At the same time we have a
legal team whose job is to scrutinize these requests and make sure they meet
not only the letter but the spirit of the law."

When asked specifically if Google will require a warrant for Latitude
Location History, as it promised to do when Latitude launched, the spokesperson
declined to answer the question directly, replying:

"When a Google Latitude subscriber communicates his or her location in
Latitude, Google believes that the information should receive the same special
protections as other communications content."

This is slippery; Google is implying that it would request warrants from law
enforcement officials seeking Latitude info, but it isn't explicitly promising
to do so.

Bankston also wants more clarity from Google. We'll see if he gets it. In
the meantime, you have to think the exoneration in the Facebook robbery case
will only heighten law enforcement officials' and litigators' interest in using
social networking tools as evidence.

Latitude, with Location History, would have a big bulls-eye on its back,
especially if Google will not require warrants to cough up user data.